League and Williams Lawyers

Tag: inheritance

  • Deathbed Gifts in British Columbia

    Deathbed Gifts in British Columbia

    In estate law, gifts and the context under which they were given is one of the most common issue that families litigate over. There are many different types of gifts a testator can give, each with specific requirements to be legally valid. One of the biggest reasons family members raise claims is that they believe a gift was given under unfair or suspicious circumstances. Some claims assert that a transfer was never intended to be a gift at all. In this article, we’ll discuss the concept of Donatio mortis causa, or deathbed gifts. These are gifts given when the gift giver (donor) is contemplating death.

    Concerns Over Gifts Given Late in Life

    One of the easiest and most efficient ways of gifting assets from your estate is inter vivos gifting. This is giving gifts while you’re still alive instead of through your will. Inter vivos gifting has many benefits for will writers, including reducing probate fees and allowing them to watch their loved ones enjoy the gift. However, inter vivos gifts are often the subject of estate disputes. Sometimes, family members expect to inherit an asset, only to find that it has been gifted to someone else already. In these circumstances, the family member might raise a claim that the asset wasn’t intended to be a gift, and is held in a constructive trust. To avoid conflict, will writers should make their intentions clear in writing when making significant asset transfers. 

    Another concern which can give rise to litigation is uncertainty over the testamentary capacity of the donor. To make a valid gift, the donor must have capacity, and must not be under undue influence from other parties. Lack of capacity and undue influence can invalidate a gift, meaning the asset becomes part of the estate’s residue. Beneficiaries may be very concerned when their loved one gives away a large asset near the end of their life. However, deathbed gifting is valid in many circumstances, and there is extensive case law demonstrating valid deathbed gifting. 

    It is always best to plan gifts in advance and be clear about your intentions.

    Elements of a Valid Deathbed Gift

    Legally, a gift is a ‘voluntary and gratuitous transfer of property’ from which the donor of the gift draws no personal benefit. Beyond the basic legal criteria of a gift, a deathbed gift must: 

    1. Be made in contemplation of death;
    2. The gift is effectively delivered to the donee (receiver of the gift); and
    3. The gift is only complete upon the death of the donor.

    Let’s take a closer look at the requirements of a deathbed gift.

    1: Made in Contemplation of Death

    The gift must be motivated by the gift donor’s contemplation of their own death. This means that the donor was contemplating the prospect of their death while making the gift. The primary motivation of the donor to give the gift is the imminence of their death. However, this does not mean that the donor must expect or be certain of their imminent death.

    2: Effective Delivery of the Gift

    The gift must be effectively delivered to the donee. This could simply mean the donee takes the physical asset into their possession. When ownership has technical requirements, those must be satisfied before the donee is said to have received the gift. For example, if the gift is land, necessary documents for the transfer of that land must be completed and filed. 

    3: Completion Upon the Death of the Donor

    Any gift is only complete or “perfect” after specific criteria have been met to effect the transfer. An imperfect gift might be void or unenforceable by the donee until the conditions are met. In the case of a deathbed gift, the gift is not ‘perfected’ or complete until the death of the donor. 

    An Example From Case Law

    A commonly cited case in this area of law helps clarify what “contemplation of death” might entail. In Thompson v. Mechan (1958), the deceased was concerned about upcoming air travel. He gave Mechan the keys to his car and blank ownership documents before traveling. There was no incident with Thompson’s air travel, but he passed away from an unrelated medical condition just days after the flight. Mechan argued that the transfer of the car was a valid gift under donatio mortis causa, and the gift was complete upon Thompson’s death. 

    The court found that the gift was not a deathbed gift because it was not made in genuine contemplation of death. The court found the risks associated with air travel were no more than ordinary risks people face in everyday life. Further, even if the donor had reasonably contemplated death resulting from the air travel, the gift would not have been perfected upon his death because he died of unrelated causes. Ultimately, the court ordered Mechan to either return the car to the administrator of the Thompson estate, or pay her the value of the car.

    Reminders for Will Writers and Gift Givers

    While the law provides mechanisms to respect and enforce the wishes of testators, it is always best to make your intentions clear in writing when giving gifts. This simple act can help avoid costly and stressful estate litigation after your death, sparing your loved ones additional hardship during an already challenging time.

    Deathbed gifting and inter vivos gifting can occasionally cause controversy amongst beneficiaries, so it is best to avoid uncertainty by created a detailed estate plan and keeping it updated. If you’re ready to begin drafting your first estate plan or make changes to an existing one, contact an experienced estate lawyer today.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • Posthumous Births: Are Children Born after Their Parent’s Death Entitled to the Estate?

    Posthumous Births: Are Children Born after Their Parent’s Death Entitled to the Estate?

    Sadly, children are sometimes born after one of their parents passes away – a posthumous birth or after-born child. In other cases, babies can be conceived well after one of their parents has passed away because of current and advancing reproductive technology. In such cases, is the after-born child entitled to receive any of their deceased parent’s intestate estate like a child who was born before one of their parent’s deaths would be? The answer can be yes and no; however, it is common for an after-born child to be entitled to the estate.

    When a Posthumous Child is Entitled

    An important distinction made in the Wills, Estates and Succession Act (WESA) is whether the child was conceived before or after the parent’s death. As described in s.8 of the WESA,

    “Descendants and relatives of an intestate, conceived before the intestate’s death but born after the intestate’s death and living for at least 5 days, inherit as if they had been born in the lifetime of the intestate and had survived the intestate.”

    As per this provision, it’s clear that posthumous children conceived before their parent’s death are entitled to an inheritance. On the other hand, when the child is conceived after their parent’s death, there are specific conditions that must be met in order for the child to be entitled to the estate. In summary, the conditions are:

    1. The surviving parent who was in a marriage-like relationship with the deceased parent has written permission allowing the use of their reproductive material, written within 180 days of being used;
    2. The child is born within 2 years after the parent’s death and lives for 5 days or longer; and,
    3. The deceased parent is the child’s parent as described in the Family Law Act.
    In BC, posthumous children conceived before their parent’s death are always entitled to an inheritance.

    When all of these conditions are met, the child is entitled to receive an inheritance from the deceased parent exactly like a child born before their parent’s death would be. If, for example, the posthumous child was born 4 years after the parent’s death, the child would not receive any of the estate if the parent died without a valid will. They would only be entitled to their surviving parent’s estate, once they have passed.

    What Does This Mean for Posthumous Children?

    If a posthumous child is entitled to inherit from the intestate estate, they will receive an inheritance as described by the guidelines on intestacy in WESA. For more information, read our blog post on how the WESA will distribute an intestate estate. In most cases, posthumous children can expect to split the estate with their surviving parent (with the parent receiving an additional $300,000 before the estate is split).

    Minors in BC cannot receive an inheritance until they are 19 years of age or older. This means that the posthumous child would have their inheritance kept in a trust, or held by a trusted adult until they reach the age of 19. Once the posthumous child is no longer a minor, they will receive the entirety of the their inheritance.

    When the deceased parent has not died intestate, the provisions for the child made in their will are to be followed. The distinction between posthumous or not, and if the child was conceived before or after death are irrelevant. When the parent has not died intestate, posthumous children do not need to worry about the courts overruling the will’s requests to follow intestacy directions.

    If your child is an after-born child and you’re unsure if they are entitled to the deceased parent’s estate, contact an experienced estate lawyer today. We will ensure that your after-born child receives the inheritance that they are entitled to.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • Benefits of Gifting your Estate Assets Before Death

    Benefits of Gifting your Estate Assets Before Death

    People often hold onto their assets until death, giving them to loved ones, friends, and charities through a will. Though will writers commonly retain possession of their assets until passing, they should consider gifting cash or other assets before death. This enables the gifted assets to avoid probate fees. In Canada, gifts are tax-free.

    Before gifting, create a detailed financial plan, outlining expected lifetime expenses. Prioritize personal needs and wants, as it is your estate and assets. Will writers should be careful to only gift assets that they will not want or need to support themselves in their lifetime. Gifting before death should only be used as a means of using excess estate assets, after you’re certain you can provide for yourself for the remainder of your life.

    Advantages of Gifting Before Death

    Ultimately, beneficiaries receive their inheritance, whether before or after your death. So, what’s the difference between beneficiaries receiving the funds before or after your death? There are many different benefits to gifting estate gifts before death. As mentioned above, the most important benefit to the majority of people is the reduction of probate fees.

    Saving Money

    Gifting is a popular method of maximizing an estate’s value. However, will writers need to be clear about their intentions when gifting assets.

    Gifting during one’s lifetime can result in significant savings in fees, which can be passed down to the beneficiary.

    Consider this example: A grandmother with $1,000,000 in cash assets anticipates spending only $100,000 for the remainder of her life. She gifts $900,000 to her beneficiaries and passes away the next day. Since BC probate fees are about 1.4% of an estate’s value, her estate would pay $1,400 in probate fees on the $100,000. The $900,000 gift incurs no probate fees or gift taxes. If she hadn’t gifted the money, the entire $1,000,000 would face probate, and the estate would pay approximately $14,000 in fees—an extra $12,600 cost.

    You Get to Watch Loved Ones Enjoy the Gift

    Some may find joy in watching family members use their inheritance. Monetary gifts can benefit young adults starting school, buying a home, or launching a business. The gift offsets costs, and the giver sees the positive impact on their loved ones’ lives. Further, gifting physical assets like land or high-value personal items can also have the effect of reducing probate fees and provide sentimental value for the gift giver.

    Aiding for Personal Reasons

    There can also be personal reasons that a will-writer might choose to give a gift before their death. In the case of a family emergency or unexpected circumstance, it can be extremely helpful to receive an inheritance as soon as possible. As a will-writer, you might recognize that you won’t necessarily need the excess money and it can make more sense in some scenarios to simply give a gift of cash, to help out. While it might seem unfair to do this, the other beneficiaries of your will can receive a higher percentage of the estate to make sure everyone is still receiving a fair share of the estate. There are various different work-arounds to ensure fairness amongst beneficiaries.

    In the end, whether you give gifts before your death or name the inheritance in your will, those you wish to benefit from estate do so. The difference is that gift giving before death can avoid additional probate fees and provide sentimental value to you and your loved ones. Before naming any gifts, you should always be certain that you will keep enough to provide for the remainder of your own life.

    Things to Consider Before Gifting

    Unfortunately, gifting is a common reason for litigation in estate law, so will writers must be careful and clear about their intentions when distributing assets during their lifetime. It is important that will writers considering gifting significant portions of their estate during their lifetime are clear on their intentions for the asset transfer. The transfer of gifts should be recorded in a way that will make it clear that you did not intend for the receiver of the gift to hold the asset on resulting trust in order to minimize the risk of estate litigation after your passing.

    If you need help estate planning, contact an experienced estate lawyer today. We will work with you closely to create the perfect estate plan for your situation, maximizing your estate’s value and convenience for your loved ones during an otherwise challenging period.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • Inheritance Scams: Red Flags to Prevent Fraud

    Inheritance Scams: Red Flags to Prevent Fraud

    Inheritance scams commonly involve an individual claiming to be the executor for the estate of a ‘long lost relative’ who the victim hasn’t met. They tell the victim that they are entitled to a large inheritance from the estate. However, in order to receive it, the victim must give personal banking details to arrange the transfer. They commonly request a moderate sum of money in order to facilitate access to the funds from the bank. Sometimes, it’s obvious when someone is a target of a scam. However, many people are vulnerable to online scams and fall victim frequently.

    Receiving an Inheritance in British Columbia

    In British Columbia, a person does not have to pay or give anything to receive an inheritance. An inheritance is a gift, meaning its recipient does not have to pay anything. Further, there are no gift taxes or inheritance taxes in British Columbia. Any taxes owed by the estate will be paid out before beneficiaries can receive their inheritance. If an ‘executor’ is asking beneficiaries for money, it is possible that they are trying to scam a victim. Beneficiaries do not pay any of the estate’s fees or taxes. This is the responsibility of the estate executor, using the estate’s funds. A legitimate executor might need your bank account number to transfer funds into or an address to ship assets to.

    Detecting Inheritance Scams

    While it might sound far-fetched that a distant relative has left someone a large inheritance, it is a possibility. When someone dies intestate (without a valid will) in British Columbia, their assets are distributed according to the intestacy laws. It is possible that a very distant relative is entitled to an estate by the chain of rightful heirs. The courts will track down heirs to give them their inheritance. It might seem unrealistic; however, it could (and does) happen. Because of this, you should not immediately ignore a letter or email indicating that you are a beneficiary of an estate.

    Common Red Flags of Inheritance Scams

    If you’ve received an inheritance scam email/letter, it’s best to simply ignore it and not respond.

    Usually, inheritance scammers are careful to craft their emails or letters to create the illusion that they are coming from credible law firms in your city. If you search for the firm’s name in the fraudulent letter, it will typically be a real place. Further, scammers sometimes have access to some personal information such as your name, address or family member names. This makes it look as if they are a legitimate organization.

    To detect an inheritance scam, the first spot to look is at the sender’s address. If it’s an email, you can check the address to see where the email came from and it will usually not be a standard email address. Most law firms will have a custom mailing address with the name of their firm. For example, our firm uses @leaguelaw.com as the domain name for all staff email addresses. Another indicator of fraud is that there will usually be spelling, grammatical, or even basic English language errors in the letter. In general, law firms are very particular with their language and will not have any of these errors in their writing.

    As provided by the Australian Competition & Consumer Commission’s Scamwatch, an example of a standard inheritance scam letter – see the inheritance scam letter here.

    Fraudulent Wills

    Another type of inheritance scam is carried out using fraudulent documents. With the ability of the Wills, Estates and Succession Act to cure imperfect documents into valid wills, it can be quite difficult to detect these types of scams. Usually, a fraudulent will is handwritten and lacks witness signatures. The difficulty arises because the courts can cure an invalid will that does not meet the usual requirements into a valid will. The only way to know the will is invalid is if a person is certain that the named testator was not the one who wrote the document. It can be difficult and incredibly time-consuming to prove whether or not a document was written by a particular person.

    To prevent being involved in inheritance scams, understand that you will never have to pay out-of-pocket for estate administration or estate inheritances. The estate is responsible for paying any fees or taxes that arise from the estate.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • 6 Tips for Estate Executors for Easy Administration

    6 Tips for Estate Executors for Easy Administration

    The job of an estate executor is not always a simple one and can be extremely strenuous when dealing with complex estates. The executor must ensure the beneficiaries receive the inheritance they’re entitled to. If executors make significant mistakes in administration, they may face personal liability. In this blog post, we hope to give executors some tips to help them avoid unnecessary complications and administer the estate more seamlessly.

    Tip 1: Ask for an Asset List

    If the will-writer is still alive, executors should ask them to prepare an asset list to help with estate administration. Accounting for all of the estate assets is one of the first tasks an executor is responsible to undertake. It’s usually quite obvious to the will-writer what assets they own and where they are, however, may not be obvious to the executor. A detailed list of assets can help ensure that administration of an estate gets off to a good start. By outlining what the assets are, what thee approximate value of those assets are and where they are is very helpful. If the executor lacks this information, they often scramble to account for everything that belongs in the estate of the will-writer.

    Tip 2: Keep Detailed Notes and Accounts

    A big part of the role of an executor is to provide a detailed account of everything that goes into and out of the estate while they are responsible for managing the estate’s assets. It’s best to prepare for this throughout the estate administration process rather than trying to recall all your past transactions at the very end. If any beneficiaries take issue with the detailed account, they can request a passing of accounts, where the executor will have to prove the accounting is legitimate to the courts. Maintaining detailed notes and recordings of all transactions made while acting as the estate administrator is always a best practice. By doing this, the executor can safeguard themselves from personal liability for potential missing estate assets.

    Tip 3: Open an Estate Bank Account

    Executors can open estate bank accounts in BC before the will has been granted probate.

    A temporary bank account for the sole purpose of managing the estate’s assets (an estate bank account) can be a critical tool for executors to keep track of the estate’s assets and to manage them appropriately. Further, an estate bank account keeps all the estate assets in the same place and prevents joint accounts from creating complications in the administration. Having an estate bank account also helps executors to keep organized and differentiate estate assets from personal assets. For more information, read our blog on estate bank accounts.

    Tip 4: Keep the Named Beneficiaries Updated on the Progress of Administration

    An executor is responsible to the beneficiaries of the will, and needs to be working to make sure they receive their inheritance properly and in a timely manner. Sometimes, an inheritance has life changing impacts and it’s not uncommon for beneficiaries to become impatient while awaiting their inheritance. This can be frustrating for executors as the beneficiaries start to hound them for updates and ask them to speed up the process, which is often beyond the control of the executor. In other cases, beneficiaries are skeptical of the executor and believe that they are not is mishandling the estate or failing to accurately account for all assets of the estate.

    To avoid confusion and frustration, it’s best to keep an open line of communication with beneficiaries, keeping them updated on a regular basis with what’s going on in the administration of the estate. When executors fail to communicate with beneficiaries, often find that beneficiaries become impatient and skeptical of the executor’s ability to administer the estate appropriately.

    Tip 5: Be Reasonable and Manage Time Responsibly

    Estate administration is by no means a race, and executors should take all the time they need to finish the job properly. However, executors should be mindful that they can’t unduly delay the process for legally invalid reasons. Beneficiaries are entitled to receive their inheritance in a reasonable amount of time and can force executors to take action when they fall victim to the lazy estate (a slow executor). Executors shouldn’t rush because no one will punish them for reasonable delays. Further, the executor’s year protects executors – they have a year to finish administering the estate before beneficiaries can start actions of the complain.

    Tip 6: Don’t Be Afraid to Ask For Help in Administration

    Just because a will names someone as the sole executor, it doesn’t mean that the executor has to handle everything alone. It’s not uncommon for beneficiaries and family members to lend a helping hand, so don’t be afraid to ask for help. Further, if you need professional assistance, estate lawyers and accountants can provide help with any complex issues that may arise, ensuring appropriate resolution. If you’re an estate executor and need help, contact an experienced estate lawyer today. We can help to ensure that the estate is administered properly and in a timely manner.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • Children and Inheritance: When’s a Good Age?

    Children and Inheritance: When’s a Good Age?

    For many parents, it’s clear that their children will inherit most or all of their estate. However, the best means of giving their children their inheritance is less clear. Some worry that getting a large sum of money too young might harm a child’s drive to succeed, or allow them to waste opportunities their inheritance might have provided them with. Others believe inheriting at a younger age can provide their children with greater opportunities to establish themselves, their career, and their own family. So, when should children receive their inheritance?

    There is no perfect age for inheritance. Every person is different, and how they will use their inheritance can vary widely. The will-writer decides when and how the inheritance is given through specific terms in their will. Parents should consider the size of the inheritance, their child’s financial situation, and personal traits when making this choice. It’s also important to note that minors in BC can’t receive an inheritance until they’re 19 or older. Any inheritance a minor is entitled to will be held by the Public Guardian and Trustee of British Columbia until they’re 19 years old.

    How Inheritances Can Be Distributed to Children

    Many parents are surprised to learn they don’t have to give their children their entire inheritance all at once. When planning your estate, one of the most important decisions is how and when your children will receive their inheritance. There is no one-size-fits-all approach, so it’s important to consider your options based on your family and children’s unique situation. Some common options considered by parents when making their estate plan include:

    • Immediate lump sum distribution:
      • You children receive their entire inheritance upon your passing.
    • Age-based distribution:
      • You set specific ages for when your child will receive portions of their inheritance with staggered payments.
    • Milestone-based distrubution:
      • You decide on specific milestones that your child must reach to receive specific portions or the lump sum of their inheritance. This can allow you to financially support your child for an important milestone without them having access to a large sum all at once.
    A family trust account in BC can have a lifetime up to 80 years.

    Deciding What is Right for Your Estate Plan

    Deciding how and when your children should receive their inheritance can be a challenging and very personal process. Every family is unique, and an estate plan that works for one family may not work for another. By creating a detailed estate plan with an experienced lawyer, you have access to a number of estate planning tools to make a plan that is right for your family. Some things parents may consider when deciding how to structure their child’s inheritance distribution include:

    • The child’s financial responsibility and experience handling money;
    • The child’s current financial situation, and situation in the foreseeable future; and
    • Your values and goals for your family.

    In the end, it’s up to parents to decide when and how their children should receive their inheritance. Financial maturity and the size and nature of the inheritance are both crucial in making this decision. If you’re a parent, unsure how you want to set-up your child’s inheritance or trust, contact an experienced estate lawyer today.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • Inheriting Debt: Estates That Can’t Afford All of the Debt

    Inheriting Debt: Estates That Can’t Afford All of the Debt

    Sometimes, a person’s estate isn’t large enough to pay all of the debt they owe to creditors from their lifetime. This is called an insolvent estate. When this happens, loved ones and beneficiaries are often worried that they will be burdened with the deceased’s debt. Beneficiaries of an insolvent estate are not likely to receive their inheritance. However, they will not “inherit” the deceased’s debt either. Barring unusual circumstances, the estate is responsible with paying the deceased’s creditors. No one else will be required to pay unless they were expected to before the testator’s death. If an estate can’t afford all of its payments, certain creditors won’t be paid in full.

    Debts Owed, But Not Inherited

    A misconception that people often have is that debts simply disappear upon one’s death. This is not the case. People, and their estates, are always required to pay off outstanding debts before gifts can begin being distributed to beneficiaries. In a way, the beneficiaries are indirectly ‘paying’ these debts, as their inheritance is being used to pay them. It’s important to understand that beneficiaries are never to pay debts after they’ve received an inheritance. The executor must ensure all estate creditors have been paid before distributing gifts.

    When Debt is “Inherited”

    You can only ‘inherit’ debt from a loved one when it is jointly owned between yourself and the deceased. For example, if you and your spouse had a joint loan, you must repay it even if your spouse dies before the balance is cleared.

    Avoiding Inherited Debt for Your Loved Ones

    Well, the obvious solution to preventing loved ones from inheriting debt is to not make any joint debt agreements. While this solution might be painfully obvious, it’s not always an option for some people. We would recommend not entering into joint debt agreements when you’re reaching an older age as you’re at a higher risk of passing away before the debt is repaid. In the case that you have joint debt with someone, when one of the testators passes away, the surviving person is responsible for paying the balance.

    Any earnings received from a life insurance policy are tax-free.

    Depending on the debt agreement, some life insurance policies will cover your loved ones in the unfortunate case that you pass away before the debt is paid. There are different types of life insurance and can provide further benefits in terms of estate planning. For more information, read our blog on life insurance.

    Executors Dealing with Insolvent Estates

    The estate executor will be responsible for paying any debts owed on behalf of the estate, using funds from the estate assets. When the estate is insolvent, it can be complex to figure out which creditors have priority to be paid. Just like the beneficiaries of the will, the estate executor is not personally liable to pay debts that the estate can’t afford. The only time an executor is liable is when they distribute inheritances to beneficiaries before paying creditors. For more information, read our blog on the debt repayment order of priority.

    In the end, debt is never passed down through the will if the estate is unable to pay for the debts owed. Beneficiaries of a will never have to pay anything to receive their inheritance and won’t have to pay any estate taxes or debts after receiving their inheritance. The only case where debt is “inherited,” is when the debt was originally jointly owed. When one of the joint debt owners passes away, the debt is still required to be paid by the surviving person.

    If you’re unsure how your debts will make an impact on your estate, contact an experienced estate lawyer today. We can help you to understand the implications your debts might have on your estate and the inheritances you wish to give to loved ones.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • Adoption and Inheritance: What You Need To Know

    Adoption and Inheritance: What You Need To Know

    While BC has relatively generous estate laws for children who have been unfairly disinherited, estate planning or litigation can become complicated for families who have either adopted children or given children up for adoption. When there are no valid reasons to disinherit, by law, parents and spouses must provide adequate provisions for the life and maintenance of the lives of their children and spouse in their wills. In blended families and families with adopted children, questions and complications can arise over the definition of who a “child” really is.

    Rights of Adopted Children & Adopting Parents

    In BC, a legally adopted child is treated the same as a biological child would be for estate purposes. A will provision making a gift to “my children” would, by default, include any adopted children. In some cases, children are taken care of by friends or family members of their parents, while never being lawfully adopted. There is no concept of common law adoption like there is for common law spouses; no matter how long someone is caring for a child, they are never their lawful parent unless a legal adoption takes place. A child is not entitled to a caretaker’s estate even if the caretaker was with them for the entirety of their childhood.

    When an adopted child is disinherited from an adoptive parent’s will, they have the same right as a natural child to claim to vary the will. If there was an invalid reason for disinheriting the child, the will can be modified to give the adopted child their fair entitlement to the estate. This procedure will be exactly the same as for a natural born child who was never adopted, who challenges a biological parent’s unfair will.

    Rights of Adopted Children & Biological Parents

    Parents who have given a child up for adoption can still leave them an inheritance if they specify so in their will.

    As described in section 3 of the Wills, Estates and Succession Act (WESA), when a child is adopted they are no longer entitled to the estate of their biological parent, unless otherwise specified in the will. Once a child has been adopted by another family, that child is no longer considered their biological parent’s child for estate purposes. A will provision making a gift to “my children” would not naturally include any children who have been legally adopted by someone else.

    In the case of Boer v. Mikaloff (2017), a child who was given up for adoption was re-united with his birth mother late in her life. Before her death, she named her biological son as a beneficiary in her will, giving him part of her estate. The son was looking to make a will variation claim, arguing that he should be considered to have standing in the claim even though he was no longer legally her child because he had been made a beneficiary. The question the courts looked to answer was, “does a child who is adopted by other parents after birth, but who is named as a beneficiary under his birth mother’s will, have standing to seek relief under section 60 of the Wills, Estate and Succession Act?” In conclusion, the courts ruled that the child was a child of the adopted parent now and being named as a beneficiary of his biological mother’s will did not change this. The judge ruled that for estate purposes, no, an adopted child is not a lawful child of the biological parent. The will was not varied and the son was given the specified amount in his biological mother’s will, nothing more.

    This case is consistent with the facts of the Wills Estates and Succession Act; however, it can be troubling for adopted children who develop loving relationships with their biological parents. For more information on this case, read our blog and watch our video blog on adopted children and their biological parent’s estate.

    If you’re an adopted child or parent of an adopted child who is unsure of how these laws impact your situation, contact an experienced estate lawyer today.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • When a deceased’s assets go missing: what can be done?

    When a deceased’s assets go missing: what can be done?

    The executor of an estate has several responsibilities. These include accounting for all assets, debts, and funds entering or leaving the estate. When the executor is ready to distribute the estate to the beneficiaries, they are required under BC’s Trustee Act to provide a comprehensive account of everything that went into and out of the estate during administration. This account information must include:

    1. What the original estate was;
    2. All the assets received by the estate; and
    3. All the assets remaining to be distributed.

    Beneficiaries are entitled to this information and have a legal right to request this information at any time during the estate administration process.

    Assets Missing from the Estate

    If an executor cannot account for an asset, they can, in some cases, be ordered to pay for this out-of-pocket.

    An estate inheritance can sometimes significantly change a beneficiary’s life. It can be very stressful when the executor isn’t managing the estate as expected. Unfortunately, some executors have attempted fraud or theft by taking parts of the estate and not accounting for them. In other cases, estate assets simply go missing because of the executor’s inattention to detail or carelessness. Beneficiaries should proceed cautiously when agreeing to the accounting details, ensuring all assets are properly accounted for. While they might feel powerless during the estate administration, beneficiaries do have rights to protect their interests. If a beneficiary is suspicious of the accounts or believes an asset is missing, they should take action. They can ask the executor to prove the accounts are correct in court.

    Passing of Accounts – Proving the Account’s Accuracy

    When a beneficiary disagrees with the accounts provided by the executor, they can formally challenge them. This process is called a passing of accounts. A passing of accounts is a court hearing where the courts review the account to determine if the challenge is reasonable or not. The courts will consider a broad range of detailed evidence to determine if anything “went missing” or was miscalculated. In most cases, the courts will need to review the entire account and all the transactions involved. If the executor was not diligent with their record keeping throughout the estate administration process making sure to track all assets and transactions, it can be difficult to prove the account is accurate.

    As described in the case of the Estate of Fannie Cleverley (2000), the purpose of the passing of accounts is to “determine whether the executor has exercised his duties under the will properly and in accordance with the law.”

    Tracing the Missing Asset

    In some cases, claimants have been able to prove that an estate asset has gone missing even though the executor is not in possession of that asset. The asset must then be traced in order to recover it from whoever possesses it. The person who is in possession of the missing asset will be ordered to return the asset to the estate where it will then be distributed as detailed in the will.

    Reminders for Beneficiaries

    Beneficiaries do not have a lot of control over the estate administration process, however, there are options available to them to ensure that the process is done correctly. If you’re a beneficiary who is suspicious that the executor may have stolen an asset from the estate, contact an experienced estate lawyer today. We can ensure that the estate is administered appropriately and the beneficiaries are given their fair share of the estate.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • Undue influence: When will-makers are persuaded to disinherit

    Undue influence: When will-makers are persuaded to disinherit


    Undue influence: grounds for an estate dispute

    One of the reasons people challenge or dispute a will in British Columbia, is that the will was either prepared or signed as a result of unreasonable interference, or undue influence, by another person.   For example, the son of a testator might have pressured his parent to give him a larger portion of the family wealth because the son is the oldest child, or because his siblings are less liked or less successful than the son.  The son might use psychological, financial, or even physical pressure to influence the decision of their parent in writing their will.  In estate law, this is called undue influence.  If a court finds the will maker was under undue influence when the will was prepared or signed, the court can cancel or reduce the gift to the person who applied the undue influence.

    Making the case: what needs to be proven?

    Undue influence will not be found simply because someone persuaded the will-maker or testator to make a change to their will that benefits the person who persuaded the testator.  Good or bad, when a person asserts that a will is invalid, because the will maker was under undue influence, they have to prove several things.  The influence must be sufficient that the testator’s judgment or wishes were overpowered.  Undue influence has been described as:

    an influence causing the execution of a will which pretends to express the will-maker’s mind, but in reality does not, and expresses something else which he or she did not really mean.

    Therefore, mere persuasion or advice from an interested person will not suffice in proving undue influence.  The heavy burden of proving that force and coercion destroyed the will-maker’s free will lies with the person who is disputing or challenging the will.

    However, the burden of proof shifts if it can be shown that there was a special relationship between the will-maker and another person who substantially benefits from a will.  This is called the presumption of undue influence.  This type of special relationship arises where: the person was in a position where there was potential for dependence or domination of the will maker.

    This presumption can arise in a large variety of situations.  A common example is where the will maker is a parent who is dependent on one of their children for their day-to-day care.  Once this special relationship is established, it is the person who benefited from the will that has to prove the gift was not made out of undue influence.  If he or she cannot do this, the court can cancel or reduce the gift, or even set the entire will aside.

    I hope you have learned something about BC estate law from this blog.  Please feel free to like us on Facebook, follow us on Twitter and subscribe to our YouTube channel to receive notice of our future weekly video blogs on the law.

    Matthew Melnyk is a lawyer practicing with League and Williams in our Victoria, BC offices.  He focuses his estate dispute practice on helping those who have been wrongfully disinherited to successfully challenge unfair wills and estates to ensure his clients get what they are rightfully entitled to under BC law.  If you have an estate dispute issue, contact League and Williams for a free consultation at 250-888-0002 or via email at info@leaguelaw.com.